Over the past four years, President Donald Trump’s administration has rolled back efforts that would have improved civil and criminal justice in the United States, including closing the U.S. Department of Justice’s (DOJ) Office for Access to Justice (ATJ).
Established in 2010, the Obama administration created the office with the purpose of increasing access to justice in both the civil and criminal justice systems. While the need for criminal justice reform is widely understood, there is also a pressing need to reform the civil justice system in the United States—the part of the country’s legal system that covers such critical matters as housing rights and family law.
For several years, the ATJ made significant strides in advancing this goal. The office’s closure under the Trump administration, however, resulted in the elimination of important initiatives it had spearheaded. This includes activity and guidance to eliminate excessive court fees and fines here at home, as well as activity on the global stage on behalf of the United States to advance justice for all. Furthermore, the office’s closure contributed significantly to the lack of a coordinated, federal response to the mounting civil and criminal justice issues related to the COVID-19 pandemic.
As an important step to reverse these harms and begin to make new progress, President-elect Joe Biden’s administration should act to immediately reestablish the ATJ.
Background and history of the Obama administration’s ATJ
Every day, judges across the nation rule on civil justice issues, including whether: children stay with their families, banks and landlords can take away people’s homes, debt collectors garnish meager wages, and domestic violence victims get restraining orders. Millions of people lose their cases—and their children, homes, income, and safety—not because they have done something wrong but because they lack the support they need to navigate the courts and cannot afford to pay a lawyer. Even in the U.S. criminal and juvenile court systems, where individuals generally have a constitutional right to a lawyer at government expense when they cannot afford one, children and adults regularly go without legal assistance due to this country’s drastically underfunded and under-resourced public defender system.
In 2010, Attorney General Eric Holder launched the Obama administration’s work on access to justice as an initiative within the Office of the Associate Attorney General. First led by Harvard Law School professor Laurence Tribe, the initiative’s mission was to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.
In 2015, the Obama administration further strengthened its dedication to this mission by formally establishing the access to justice initiative as a stand-alone component of the DOJ and renamed it the Office for Access to Justice.
That same year, President Barack Obama signed a presidential memorandum elevating the ATJ’s successful Legal Aid Interagency Roundtable (LAIR) to a White House initiative and called on federal agencies to work together to help the most vulnerable and underserved people by recognizing the importance of legal services to their programs. Co-led by the DOJ and the White House Domestic Policy Council, LAIR’s 2016 report to the president documented the 22 participating agencies’ progress in identifying programs, policies, initiatives, and law enforcement goals that could be more effective, efficient, and fair by including civil legal aid alongside other supportive services and partners.
The work of the ATJ was far-reaching, facilitating strategic partnerships to strengthen access to justice initiatives throughout government. For example, the office worked with the U.S. Department of Health and Human Services (HHS) to ensure legal aid could be provided within HHS-funded health centers. This allowed for medical-legal partnerships that helped individuals to more easily address their legal needs and thereby prevent health problems from escalating. The ATJ also encouraged collaboration between law enforcement and legal aid such as the Federal Trade Commission’s (FTC) Legal Services Collaboration, a nationwide partnership with legal aid programs that helps to inform the FTC’s law enforcement priorities and allows the agency to alert local communities about scams and respond to local concerns.
Examples of the impact of shuttering the ATJ
The Trump administration’s decision to close the office and roll back many of its successes has had substantial negative impacts. To start, in the absence of the ATJ, the Trump administration has failed to incorporate access to justice initiatives into the government’s response to the coronavirus crisis, despite widespread unemployment and increasing evictions across the country. The need for federal leadership on these issues is clear. For example, a previous Center for American Progress report discussed the importance of legal representation in eviction proceedings—a problem exacerbated by the pandemic—yet still, only one-tenth of tenants have representation in court.
Furthermore, in closing the ATJ, the Trump administration significantly hindered the work across government to decriminalize poverty. Under the Obama administration, for example, the ATJ put significant effort into reversing the compounding effects that excessively high legal fees issued by state and local courts can have on individuals’ economic security. The inability to pay these fees can lead to incarceration and often results in job loss and even the loss of homes, pushing individuals further into poverty. To help address this problem, the ATJ worked with the DOJ’s Civil Rights Division to issue guidance to state and local courts. Likewise, the ATJ, with the DOJ’s Office of Justice Programs, issued an advisory to DOJ grant recipients on constitutional and statutory obligations when collecting such fees from children. This work was credited with spurring reform efforts on the issue across the country, including in Arizona and Ohio, and leading to federally funded pilot programs in California, Louisiana, Missouri, Texas, and Washington state. In 2018, however, then-Attorney General Jeff Sessions rescinded this guidance, halting progress and sending a clear signal to court administrators that such practices would no longer be disfavored in the eyes of the federal government.
In addition, over the last decade, activity around access to justice has taken root in a variety of international forums, such as the Open Government Partnership, the United Nations, the Organization for Economic Cooperation and Development, and the Organization of American States. Under the Obama administration, the ATJ represented the U.S. government in many of these efforts, helping to affirm this country’s position as a leader on access to justice. But since the closure of the office, the federal government has failed to play any significant role in these settings, abdicating its responsibility as a global leader on this issue.
Other examples of rollbacks include eliminating important guidance to state criminal justice systems about using available federal funds to support public defenders and courts, not just police and prosecutors. In addition, the Trump administration’s proposed budgets have consistently called for eliminating the Legal Services Corp., a nonprofit corporation established by Congress more than 45 years ago and the single largest funder of civil legal aid for low-income Americans. Furthermore, amid other attacks on immigrants, the Trump administration has called for the elimination of the DOJ Legal Orientation Program, which provides individual and group presentations, workshops, and referral to pro bono legal services to detained immigrants in removal proceedings.
The huge void in federal leadership on access to justice, left by the Trump administration’s rollbacks, must be addressed.
Reestablishing the ATJ
While Attorney General Sessions closed the ATJ, LAIR technically continues, though in a significantly diminished role than under Attorney General Holder and his successor, Attorney General Loretta Lynch. Perhaps more importantly, the regulation setting out the functions of the ATJ and the presidential memorandum establishing LAIR remain in effect.
As a result, the ATJ can be reconstituted immediately. Once reestablished, the ATJ should again operate as an independent office, dually reporting to both the deputy attorney general and the associate attorney general to ensure access to justice considerations are reflected in criminal law enforcement activity and civil justice issues.
In order to make DOJ and administration positions stronger, fairer, and more just, the reestablished ATJ should once again provide access to justice input on federal policy and positions in proposed legislation, regulations, relevant court proceedings, and in multilateral and international activity. Below are a few examples of some of the work the ATJ should immediately begin to undertake:
- Spur vital cross-agency responses to the pandemic through the White House LAIR. A reinvigorated LAIR must immediately focus on programs and policies across the executive branch that address civil and criminal justice problems exacerbated by the pandemic, such as housing, debt, domestic violence, access to health care, unemployment and other benefits, as well as prison conditions and diversion and reentry programs. LAIR could immediately launch teams with multiagency expertise and authority to align and leverage resources. Similar types of coordination efforts would also strengthen the federal government’s response to both ongoing and future natural disasters writ large.
- Reinstate federal guidance on court fines and fees. Reissuing these guidance documents to clarify state and local courts’ legal obligations with respect to the enforcement of court fines and fees would once again drive reform to restore integrity to America’s justice system and eliminate unjust fines and fees.
- Reestablish the United States as a global leader on access to justice. By acknowledging the crisis in the system at home, while at the same time leveraging America’s long-standing experience on issues related to access to justice, the United States can once again establish goodwill with justice leaders across the globe, working diligently to reform and improve systems of justice.
- Include public defense perspectives in federally led reform efforts. The ATJ would again lead efforts to not only ensure support for public defense on the ground but also prioritize input from these attorneys on relevant federal policy and advisory working groups to address the seismic racial disparities in the criminal justice system. The Trump administration has frequently excluded these perspectives; in fact, a federal judge ruled in October that the Presidential Commission on Law Enforcement and Administration of Justice violated the requirements of the Federal Advisory Committee Act that membership be “fairly balanced” because the commission included only law enforcement officials.
- Strengthen legal representation in the immigration court system. As just one part of the broad immigration system overhaul needed, it will be critical to reinstate and strengthen federal programs that support legal representation and know-your-rights trainings for unaccompanied children and other vulnerable immigrants.
- Rejoin the DOJ State Capital Counsel Mechanism Working Group. This working group helps to review state applications to limit the timing and scope of federal habeas review of state capital cases under certain circumstances. In the absence of the ATJ, there was no criminal defense perspective among the working group’s membership.
The need to advance access to justice in all forms has only been heightened during the Trump administration. The past several months alone have illustrated this, as protests against police brutality and systemic racism have played out across the country, unemployment has skyrocketed, families have struggled to keep their homes, and rates of interpersonal violence have increased. The incoming Biden administration should reestablish the DOJ’s ATJ as a necessary step to ensure a holistic, effective, and comprehensive response to the challenges facing the United States.
Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress. Maha Jweied is a senior fellow at the Center. Karen A. Lash is a senior fellow at the Center.
The authors would like to thank Sam Berger, Robert Bullock, Greg Chen, Lisa Foster, Ben Hernandez-Stern, Priya Sarathy Jones, and Allie Yang-Green for the invaluable input given in their personal capacity.
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